compensation for the amount of alimony to those for whom the injured person is performing the obligation to provide alimony. The monthly alimony is determined as the minimum wage, unless otherwise provided by law or determined by a valid decision of a competent State agency.
Fifth , material damage due to health damage, in which the State will compensate for reasonable expenses for treatment, care, health recovery and lost or reduced functions of the injured person; actual lost or reduced income; reasonable expenses and actual lost income of the person taking care of the injured person during the treatment period. In addition, in cases where the injured person loses the ability to work and needs someone to take care of him/her regularly, the compensation includes reasonable expenses for taking care of the injured person and support for those for whom the injured person is performing support obligations.
It can be said that listing each type of damage that civil servants are capable of causing to their citizens has demonstrated the high self-responsibility of the State agency for all forms that, whether intentional or unintentional, civil servants cause to their citizens in the process of performing their duties, causing loss of their rights and interests. Thereby, protecting the victims comprehensively against the damages they have to bear. However, there are still some types of damages that the injured party is very concerned about but the current legal documents have not mentioned such as the restoration of the job position, pension regime, travel expenses, accommodation of the injured person during the process of making complaints and lawsuits that are not accepted for compensation by the State.
1.4.7. Application of the Law on TNBTCNN
To ensure clarity in the application of the law, Article 66 of the Law on Compensation for Damages clearly stipulates the application of the law in each case, specifically: for cases where compensation claims have been approved by competent State agencies.
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For cases that have been accepted but have not been resolved or are being resolved according to Resolution No. 388, those legal documents shall continue to be applied for settlement. As for cases that are entitled to compensation according to Resolution No. 388 and Decree No. 47, by the time the Law on State Compensation comes into effect and are still within the statute of limitations according to the provisions of these documents but have not yet requested the State for compensation or have requested but have not been accepted, the provisions of the Law on State Compensation shall be applied for settlement.
1.5. Some new points of the Law on TNBTCNN compared to previous regulations
Compared with previous documents regulating compensation for human rights such as Resolution 388 and Decree 47/CP, the Law on Compensation for Human Rights 2010 has specific provisions on principles of compensation settlement; scope of compensation; order and procedures for compensation settlement; factors to exercise human rights to the maximum extent when interests, property, dignity, honor, health are violated, such as the right to request compensation, the right to complain, the right to file a lawsuit in court to resolve compensation requests, the right to negotiate equally with the agency that has compensation for the damaged person; at the same time, it stipulates sanctions on the responsibility to reimburse State officials who cause damage for which the State must compensate and has disciplinary measures for the level of fault and damage caused by that person. In particular, the Law on Compensation for Human Rights also specifically stipulates the determination of fault of civil servants performing official duties as well as specific regulations on damages to be compensated by the State. It can be said that the Law on TNBTCNN has almost fully covered the previous regulations in the documents prescribed by our State on TNBTCNN in all three areas of administrative management, litigation and execution of judgments. Accordingly, the Law on TNBTCNN demonstrates superiority, containing many new points compared to those regulations. Specifically:
- Compensation settlement mechanism through appointing a representative to perform
The settlement of compensation in the Law on Compensation for Civil Accidents replaces the mechanism through the Compensation Settlement Council stipulated in Decree No. 47/CP. Accordingly, the appointment of a representative is specifically and strictly regulated in Articles 7 and 8 of Decree No. 16/ND-CP on the standards and conditions of the representative such as position and working experience in the industry and field arising from compensation liability, clearly defining the authority of the representative, in which, to be transparent and objective in the compensation settlement process, the representative must be a person unrelated to the official who caused the damage and the person who suffered the damage.
- The negotiation procedure at the agency with TNBT is a mandatory procedure in the settlement of compensation in the Law on TNBTCNN. Because Article 3 of Decree No. 47/CP stipulates that the injured person can file a lawsuit directly to the Court to settle the compensation, leading to the agency with TNBT not properly and fully performing its role in settling compensation and causing overload for the compensation settlement activities at the Court. The Law on TNBTCNN strictly and specifically stipulates the negotiation of compensation at the agency with TNBT before filing a lawsuit with the competent Court for settlement. This is considered a mandatory procedure when implementing compensation settlement.
- The Law on Compensation for Wrongful Conviction unifies the legal basis for compensation settlement among the fields of administrative management, litigation and judgment enforcement because Decree No. 47/CP and Resolution 388 stipulate the order and procedures for compensation settlement are not unified, specifically: regarding the basis for compensation requests, Decree No. 47/CP allows the injured person to request immediate compensation while Resolution No. 388 only allows the injured person to request compensation when there is a document confirming that he/she is wrongfully convicted - or is eligible for compensation. Regarding the procedure for negotiating compensation, Article 3 of Decree No. 47/CP stipulates that the injured person can
The choice between requesting the agency with TNBT to settle the compensation or filing a lawsuit directly to the Court for settlement while Article 3 of Resolution 388 clearly stipulates the principle of compulsory compensation settlement through negotiation procedures at the agency with TNBT and the injured person only has the right to request the Court to settle the compensation when the prescribed time limit has expired and the agency with TNBT has not conducted negotiations or in cases where negotiations are unsuccessful. Regarding the form of expressing the results of negotiations, Article 6 of Circular No. 54 only stipulates the making of a record in cases where negotiations are successful, and in cases where negotiations are unsuccessful, it is not necessary to make a record but to establish a case file to request the Court to settle. However, according to the provisions of Article 11 of Resolution 388, whether or not negotiations are successful with the injured party, the agency with the TNBT must still draw up both a record of successful negotiations to issue a compensation decision and a record of unsuccessful negotiations so that the injured party has the right to request a competent Court to resolve the matter. From that reality, it can be seen that these guiding documents are not complete and consistent, therefore, one of the purposes set out when promulgating the Law on TNBTCNN is to " unify the law on compensation for damage caused by public servants, overcome the situation of two legal grounds on compensation for damage in current administrative activities and criminal proceedings " [9, p.2], accordingly, the Law on TNBTCNN has basically overcome the above shortcomings when detailing the basis for compensation requests; acceptance of compensation requests; verification of damages; negotiation of compensation; issuance of compensation settlement decisions and settlement of compensation at the Court according to the TTDS procedure.
- The Law on Compensation for Accidents and Injuries stipulates more specifically a number of steps in the compensation settlement procedure through two stages: mandatory negotiation procedure at the agency with compensation (out-of-court negotiation) and compensation settlement procedure at the Court through the civil procedure.
In short, inheriting and gradually codifying the previous relevant legal provisions on state compensation, and at the same time, selectively referring to the experiences of other countries on state compensation that can be applied appropriately to the conditions of our country, has formed a law, a mechanism for implementing, protecting and promoting human rights in Vietnam on state compensation in a comprehensive manner and suitable to the context of the country and in accordance with international treaties to which Vietnam is a member.
Chapter 2
STATE OF HUMAN RIGHTS PROTECTION
IN THE LAW ON STATE COMPENSATION LIABILITY IN VIETNAM
2.1. Practice of law enforcement before the existence of separate laws
Previously, when a separate Law on State compensation had not yet been issued, according to some legal experts, based on legal provisions as well as from practice, the issuance of Decree No. 47/CP was considered "a big step forward in providing detailed and specific guidance and effectively implementing Articles 623 and 624 of the 1995 Civil Code " [32, p.13] and Resolution No. 388 "was a breakthrough in the State taking responsibility for itself when people's rights were violated by litigants" [32, p.13].
It is possible to calculate the positive and effective aspects when applying the provisions of Decree 47/CP and the guiding document for implementation: " From 1997 to 2007, 170 cases were resolved, with compensation of more than 16 billion VND " [32, p.16]. In addition, people who have been wrongly convicted are also restored to honor and dignity by the police, courts, and prosecutors when they are wrongly convicted. In addition, regarding compensation for damages for cases of wrongful conviction in criminal proceedings according to the provisions of Resolution No. 388, after 4 years of implementation up to the end of 2007, " the prosecuting agencies have resolved nearly 200 cases, with compensation of nearly 15 billion VND" [32, p.16]. The issuance of this Resolution has received high public support and consensus, temporarily overcoming violations that caused damage caused by public servants, and partially compensating for material and spiritual losses to the people and victims.
It can be said that during this period, the human right to compensation for damages has received considerable attention from the State. However, due to the scope
Due to the narrow adjustment, the impact of legal documents directly regulating the compensation regime at this time are all sub-law documents, with low legal value, not on par with the nature of the compensation regime. In support of this statement, in reality, " Decree No. 47/CP has almost no effect, has not been applied to resolve compensation for damages in the fields of criminal, civil and administrative proceedings" [32, p.16]; compensation settlement is mainly carried out through administrative complaint settlement procedures without directly applying Decree No. 47/CP; the number of cases resolved for compensation is not commensurate with actual requirements.
In addition, the provisions in the Civil Code only provide general provisions on TNBT in Article 619 on compensation for damage caused by officials and civil servants and Article 620 on compensation for damage caused by competent persons of the prosecution agency, but there are no specific provisions on the mechanism for implementing this responsibility. The 2003 Criminal Procedure Code and the 2004 Civil Procedure Code both have provisions on TNBT of the prosecution agency, but they only stop at the level of recognizing the right to compensation of the damaged person and the responsibility to compensate of the prosecution agency, without a specific legal mechanism to implement this compensation.
Accordingly, the law on compensation at this time still has many limitations, specifically, the scope of compensation is narrow, limiting the scope of compensation to the administrative and criminal proceedings fields. In addition, the agency with compensation is not clearly defined because in principle, the agency handling compensation is the agency directly managing the civil servant who committed the act of causing damage. In the field of criminal procedure, this principle has an exception, shown in that the agency handling compensation is the agency that ultimately made a mistake. According to Resolution 388, the agency that finally handles injustice is the agency with compensation regardless of which agency performed the previous series of unjust acts. For example: the investigation agency temporarily detained a
person, then decide to suspend the investigation, the investigating agency is responsible for compensation; in this case, if the temporary detention of a person has been approved by the People's Procuracy at the same level, the People's Procuracy has approved the arrest warrant with TNBT... If this person is found guilty by the Court of First Instance but is later found innocent by the Court of Appeal, the agency responsible for compensation is the Court of First Instance. From the perspective of the injured person, this principle is beneficial to them because the injured person can easily identify the agency with TNBT. However, from the perspective of the prosecuting agency, this is difficult to accept because the prosecuting agencies always believe that wrongdoing is not done by just one agency but by many agencies. This is the reason why the prosecuting agencies often shift responsibility to each other. In reality, there are many cases where it is very difficult to determine which agency has TNBT, especially when there are officials from many agencies causing damage. The lack of regulations to clearly determine which agency has the TNBT in these cases has caused many difficulties for organizations and individuals suffering damages in the process of exercising their right to compensation.
Regarding compensation settlement procedures, including pre-litigation negotiation procedures; compensation settlement procedures at Court; procedures for restoring honor and paying compensation to the injured party; compensation settlement procedures at Court are applied as the procedures for settling normal civil cases in Article 12 of Resolution No. 388, which are unclear and inconsistent, causing difficulties for the exercise of the right to request compensation of the injured party. Regarding compensation settlement in administrative activities, the procedures are still cumbersome and do not guarantee the rights of the injured party. For example, Article 7 of Decree No. 47 only stipulates compensation settlement through a Compensation Settlement Council without stipulating compensation settlement procedures at Court. This is clearly a limitation of procedural rights for the injured party.